Khalid Sheikh Mohammed

9/11, Andy McCarthy, Barack Obama, Eric Holder, Ghailani, Khalid Sheikh Mohammed, Liz Cheney

Judge bars major witness in Ghailani trial; will Obama and Holder leave appeal and ‘clean team’ question for KSM trial?

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The New York Times reports:

A federal judge barred prosecutors on Wednesday from using a crucial witness in the first trial of a former Guantánamo detainee, adding to the fierce debate over whether the government can successfully prosecute terrorist detainees in civilian court. The trial of Ahmed Khalfan Ghailani, who faces charges in the 1998 bombings of two United States Embassies in East Africa, has been seen as a test of President Obama’s goal of moving many other detainees, like Khalid Shaikh Mohammed, into federal court and, ultimately, closing Guantánamo.
…
Prosecutors say the disputed witness, Hussein Abebe, sold Mr. Ghailani the TNT used to blow up the embassy in Dar es Salaam. They say that Mr. Abebe agreed voluntarily to testify against Mr. Ghailani, and that his decision to cooperate was linked only remotely to the interrogation. Mr. Abebe had been characterized by prosecutors as a “giant witness for the government.” On Friday, a prosecutor, Michael Farbiarz, explained in court that without Mr. Abebe’s testimony about selling the TNT to Mr. Ghailani, “the government has no way of putting such evidence in front of the jury at all.” But in a three-page order, Judge Kaplan said that “the government has failed to prove that Abebe’s testimony is sufficiently attenuated from Ghailani’s coerced statements to permit its receipt in evidence.”

If President Barack Obama and Attorney General Eric Holder do not now appeal Judge Kaplan’s decision, it would perhaps leave in legal limbo to a federal trial of Khalid Sheikh Mohammed whether evidence derived from coercive interrogations and ‘clean team’ interrogations may be entered into evidence in federal court.

Do the American people want them to wait and take that risk during the trial of the mastermind of 9/11?

Prior to Judge Kaplan’s decision, Andrew McCarthy explained why prosecutors did not attempt to introduce the results of the 2007 ‘clean team’ interrogations by the FBI that also resulted in the identification of the man who sold Ghailani the explosives used in the 1998 bombing of our embassy in Tanzania:

The Justice Department figured it could roll those dice because it has a witness, Hussein Abebe, who is prepared to testify that he sold Ghailani the TNT. Not so fast, say Ghailani’s lawyers. They argue that the government learned about Abebe only because of Ghailani’s confession. By their lights, having agreed not to use it, the government implicitly concedes that the confession is toxic; therefore, the argument goes, it is no more proper for prosecutors to call a witness discovered because of the confession than it would be to use the confession itself.

If Holder and the prosecutors successfully appeal Kaplan’s decision and Ghailani is convicted, it would form the basis for an appeal that quite likely would be decided by the Supreme Court.

If they proceed with Ghailani’s trial without the direct testimony from the man who sold Ghailani the explosives and Ghailani is acquitted, there would be no post-trial appeal of the decision. Yet the public’s outrage would almost surely force Congress to ban bringing Khalid Sheikh Mohammed or any Guantanamo detainee to the U.S. for trial.

Keep America Safe’s Chairman Liz Cheney put it this way:

“The Obama Administration has dedicated itself to providing al Qaeda terrorists the kind of due process rights normally reserved for American citizens. By insisting on trying Ahmed Ghailani in civilian court with full constitutional rights, instead of by military commission, President Obama and Attorney General Holder are jeopardizing the prosecution of a terrorist who killed 224 people at U.S. Embassies in Kenya and Tanzania. If the American people needed any further proof that this Administration’s policy of treating terrorism like a law enforcement matter is irresponsible and reckless, they received it today.”

9/11, al-Nashiri, Barack Obama, Eric Holder, Gitmo, Guantanamo, Khalid Sheikh Mohammed, Military Commissions, USS Cole

Holder holding KSM death penalty hostage for 9/11 civilian trial? (Update: plug these other damn holes!)

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One April 21, 2010, I took issue with this (now repeated) assertion by Attorney General Eric Holder before the Senate Judiciary Committee:

ATTORNEY GENERAL ERIC HOLDER: Yes. In an Article III court, a person can plead guilty to a capital offense; that is not allowed in a military commission.

In fact, 949i(b) of the Military Commissions Act indicates an accused may plead guilty and specifically states that a guilty plea is the equal of a finding of guilty by a panel (a military commission’s jury):

Finding of Guilt After Guilty Plea.–With respect to any charge or specification to which a plea of guilty has been made by the accused in a military commission under this chapter and accepted by the military judge, a finding of guilty of the charge or specification may be entered immediately without a vote. The finding shall constitute the finding of the commission unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty.

Sec. 949m(1) “Numbers of votes required” elaborates

“(a) Conviction.–No person may be convicted by a military commission under this chapter of any offense, except as provided in section 949i(b) of this title or by concurrence of two-thirds of the members present at the time the vote is taken.
“(b) Sentences.–
(1) No person may be sentenced by a military commission to suffer death, except insofar as–
“(A) the penalty of death is expressly authorized under this chapter or the law of war for an offense of which the accused has been found guilty;
“(B) trial counsel expressly sought the penalty of death by filing an appropriate notice in advance of trial;
“(C) the accused is convicted of the offense by the concurrence of all the members present at the time the vote is taken; and
“(D) all the members present at the time the vote is taken concur in the sentence of death.

It is clear that subsequent to a guilty plea, a finding of guilty by a military judge is commensurate with a unanimous guilty verdict vote by a panel. If that were not true, then a military judge also may not assume lesser thresholds were meant should an accused plead guilty in order to impose any penalty requiring lesser minimums. For example, The MCA also says:

“No person may be sentenced to life imprisonment, or to confinement for more than 10 years, by a military commission under this chapter except by the concurrence of three-fourths of the members present at the time the vote is taken.”

Yet AG Holder is not arguing that a military judge does not have the authority to sentence Khalid Sheikh Mohammed or any of his four lieutenants to life imprisonment, should they plead guilty to charges carrying that as the maximum penalty, without the concurrence of “three-fourths of the members present.”

As Debra Burlingame stated back in April:

“Congress could clear up any ambiguity by amending the statute.” She added, “Why would anyone who supports an Article III capital plea vote against it? The defendant wants to plead guilty.”

But let’s back up to the summer of 2009 when, after a 5-month review by the Department of Justice’s Task Force, the White House announced it would ask Congress to “fix” the Military Commissions Act. Why did they not state then that the death penalty verbiage needed fixing?

If they discovered a problem only after Congress passed legislation last year, then Mr. Holder should stop fear-mongering on TV and ask President Obama to ask Congress to again fix the MCA.

Update: During his November 18, 2009 appearance before the Senate Judiciary Committee, Holder gave no indication that the death penalty subsequent to a possible guilty plea in the bombing of the U.S.S. Cole might not be within the authority of a military judge:

“We will also use every instrument of our national power to bring to justice those responsible for terrorist attacks against our people. For eight years, justice has been delayed for the victims of the 9/11 attacks. It has been delayed even further for the victims of the attack on the USS Cole. No longer. No more delays. It is time, it is past time, to act. By bringing prosecutions in both our courts and military commissions, by seeking the death penalty, by holding these terrorists responsible for their actions, we are finally taking ultimate steps toward justice. That is why I made this decision.”

Which prompts me to point out that just last week the Military Commissions at Gitmo were restarted, Ibrahim Ahmed Mahmoud al Qosi pleaded guilty to conspiracy and material support charges, and, according to the Department of Defense, procedures remain in place to impose the fullest sentence allowed by statute:

Al Qosi faces a maximum penalty of life in prison on the two charges, Iglesias said. His sentence will be determined by 12 military officers as part of the commission at an Aug. 9 sentencing hearing, he said.

So, why is it even an issue over whether a military judge may impose the death penalty, should Khalid Sheikh Mohammed plead guilty before a military commission, when his sentence would be decided by a 12-member panel and the MCA gives them full authority to determine his sentence? If, as Holder says, there is a “real problem,” he should spell it out to the President and Congress and they should plug the damn hole in the statute.

In addition, there has been no “swift and certain justice” for the Cole bombing that President Obama promised last year:

“Both the 9/11 and the Cole families had the president look them in the eye and say, ‘We’re going to close Gitmo, move forward with this process, and hold people accountable,’ ” said Commander Kirk Lippold, a proponent of military trials who was the commanding officer aboard the U.S.S. Cole when it was attacked in Yemen in 2000. “When does an unfulfilled political promise become a lie?” Lippold asked.

At best, al-Nashiri was placed on the back burner of Guantanamo’s military commissions calendar.

Yet what if the answer to Commander Lippold’s question is elected and appointed government officials were hoping for a swarm of appeals over whether Constitutional rights attached to the case the moment al-Nashiri set foot on U.S. soil, those appeals would tie up the case for years, and ultimately the courts would destroy military commissions?

The President and Attorney General can begin to prove their words are their bonds by both restarting al-Nashiri’s military commission immediately, at Gitmo, and asking Congress to take any ambiguity out of the MCA before the summer recess begins.